Sarah Darnell, Staff Writer, SDarnell@albanylaw.edu
The God and the Land symposium concluded Friday morningwith its fourth and final panel, which gave practitioners an opportunity to discuss questions raised in litigating the Religious Land Use and Institutionalized Persons Act (RLIUPA) and give advice on how to deal with issues as they arise.1
Amy Lavine began by asking if accessory uses like drug and alcohol rehab centers, daycare services, dormitories, and office buildings constitute “religious uses” and fall within the reach of RILUPA?2
Julie Tappendorf, who represents municipalities, responded that the legislative history of the act states that not every activity conducted by a religious institution is religious exercise. She noted courts are inconsistent on how and whether accessory uses equate to exercise. In practice, she finds courts look how closely tied the use is to religious exercise. As an example, she mentioned a recent case involving a religious institution’s education program. The court found that even the physical education curriculum was tied to religious teachings. On the other hand, she thinks daycare services might not fall within the scope of religious exercise. In sum, she feels that whether or not an activity constitutes religious exercise, depends on how closely the activity is tied to the tenants of the religion.
Dan Dalton then provided the perspective of religious institutions and suggested looking at the mission of the church. For example, if the mission of the church involves counseling, then counseling services fall within the exercise of religion.
As a representative of both municipalities and churches, Dwight H. Merrium, provided advice for both sides. He agreed with Mr. Dalton that the church’s mission is an important inquiry and suggested hiring a consultant to research the history of the church to determine its mission. He suggested that religious institutions tie land uses into religious services, for example, stating that a proposed gym would be used for overflow services. On the government side, he felt that religious use usually gets bundled up with other issues and overshadowed by other concerns.
For the second question, Amy Lavine asked whether the panel would consider building a Bible theme park an exercise of religion.3
Mr. Merrium immediately joked that he did not want to answer the question because he would like either side for a client. Then, Mr. Dalton acknowledged the difficulty of the question, but felt that looking at the religious institutions mission could resolve the issue. If the mission were truly to bring people to the faith, he would argue that building a Bible theme park constitutes an exercise of religion.
The question reminded Ms. Tappendorf of the Church of Universal Love and Music case.4 In that case, a property owner desired to use property that had been zoned for agriculture to hold religious services and concerts.5 She suggested that these types of cases require looking at the sincerity of the mission, whether the purpose is furthering the religious message or making money. She also mentioned the case of a man who placed a cross on his home in Chicago, where he held small religious services, and received a large break on his property taxes.6 She expressed concern that the protections granted by RILUPA might encourage abuse.
Patricia Salkin quickly pointed out that courts try to avoid looking at issue of sincerity of the mission. Also, that religious groups will likely say their purpose is to make money because many need money to provide services to support their missions.
Mr. Dalton agreed that some institutions abuse RILUPA and give well-meaning institutions a bad name, but he felt that lawyers have a responsibility to refuse to take those cases.
Next, Patricia Salkin pointed out that the term “substantial burden” a key term that Congress did not define in RILUPA. She then asked the panel how courts deal with the lack of guidance provided by Congress.
Attacking the question from a practical standpoint, Mr. Merrium noted that the circuit courts define “substantial burden” in light of free exercise jurisprudence.7 He mentioned several cases to demonstrate that the emerging doctrine seems to suggest that courts adhere to the common law substantial evidence rule.8 He also stated, that although it would mean less business for lawyers, that the legislature should clarify what “substantial burden” means.
Following up, Patricia Salkin asked if the panel could agree that requiring religious institutions to apply for a land use permit is not a substantial burden.
Mr. Merrium made the point that requiring a land use permit for a religious group and not another similarly situated group would constitute a substantial burden.
In order to simplify the question, Amy Lavine asked the panelists to assume that all groups were on equal terms. She pointed out that if requiring groups to apply for a permit suggests that municipalities would deny applications in some cases. She then asked the panelists to explore circumstances where either denial or approval would be an appropriate action.
Narrowing the question to building mega-churches, Ms. Salkin asked whether a municipality could cap square footage without placing a substantial burden on a religious institution.
Julie Tappendorf gave an example of a municipal client who had a neutral size regulation that restricted size based on the location of the property. She felt that as long as size restrictions are neutral and rational that municipalities could place square footage limitations on religious institutions.
While Mr. Merrium agreed with Ms. Tappendorf, Mr. Dalton disagreed with the analysis. Even when a regulation is neutral, he felt that the mission of the church and the services it provides to the community must be considered in all cases. Ms. Tappendorf recognized the importance of accounting for specific missions, but that courts are skeptical when the requested use anticipates future needs.
Ms. Tappendorf acknowledged the problem of approving permits for private clubs and not religious institutions. She advised that municipalities look at their codes to make sure they do not treat similarly situated religious and non-religious institutions differently. Additionally, municipalities must make sure their zoning laws do not totally exclude religious institutions. Agreeing that municipalities may limit the location of religious institution as long as they treat similarly situated non-secular institutions the same way, Mr. Dalton gave an example from a recent case in Illinois. After Wal-Mart left the town, the town agreed to allow a religious institution to hold services in the empty store. However, when the church purchased the building, the town change to code to prevent assembly uses in the building.
According to Mr. Merrium, one problem with limiting restrictions arises out of growing denominations. For example, when small prayer meetings grow until they are no longer residential uses. He also noted that discrimination of religious institutions occurs because some states depend on property taxes and churches are exempt from paying those taxes.
Ms. Salkin then shifted the discussion to litigation. She asked what restriction justifications would successfully demonstrate a compelling government interest?
Both Mr. Merrium and Ms. Tappendorf agreed that although they always put on evidence of compelling government interests, they would rather not have to get there. Mr. Merrium said if you get to compelling interest, you are in trouble. However, they both offered some examples of potential compelling interests including: traffic, comprehensive planning,9 storm water runoff, and environmental impacts. Mr. Merrium offered sustainable development and green building as another potentially persuasive compelling interest.
Patricia Salkin then presented the following hypothetical: Suppose the government asserted a compelling interest in denying a permit because of an insufficient waste water system. If the religious institution offered to upgrade the system, would that remove the compelling government interest? Would the municipality have to accept their offer?
The panelists agreed that the churches offer would remove the compelling interest. Mr. Dalton noted that churches do not want to file lawsuits, they just want a place to congregate and that many would happily pay for an upgrade to avoid court.
Ms. Lavine moved on to RILUPA’s discrimination provision.10 Noting that discrimination is often difficult to demonstrate, she asked whether religious institutions need a similarly situated secular institution to prove the existence of a discriminatory regulation.
Religious institutions only need to demonstrate that similarly situated secular institutions were treated different in as applied challenges. Where the statute is neutral on its face, courts must look at the history to see if religious institutions were routinely denied permits, while secular institution were awarded them, the government violates RILUPA. Ms. Tappendorf said much depends on if the court defines assembly uses narrowly or broadly and that courts struggle with deciding whether the institutions are really the same.
Before taking questions from the audience, Ms. Lavine asked the panel for advice on avoiding litigation over RILUPA.
The panelists agreed that often litigation is the result of personal animus could be avoided if both parties had treated each other with greater respect earlier in the process. Mr. Merrium suggested a notification requirement before an institution can file a lawsuit against the government in order to give the parties time to negotiate a resolution. He also suggested mandatory mediation with a neutral third party. Mr. Dalton disagreed with his suggestions because often municipalities tell religious institutions up front that they will never grant the permit. He felt that in such cases, mediation would only waste time and money. He also noted that a religious institution would have an easier time proving substantial burden if they agree to compromise and the government will not.
Ms. Tappendorf suggested that municipalities look at their codes to make sure the regulations themselves are not the problem.
After taking questions from the audience, Ms. Lavine posed the final, and perhaps most important, question of the symposium: Is RILUPA constitutional as it concerns land use?
Dwight Merrium, who represents both the government and religious institutions, answered that he would wait for an answer from the high court.
Julie Tappendorf, who represents municipalities, stated that her biggest concern with the statute involve its entanglement with local land use decisions.
Dan Dalton, who represents religious institutions, stated that the statute is not only constitutiona, but necessary to prevent discrimination.
1 – 42 U.S.C. § 2000cc (2006). The full text of the Act can be viewed at http://www.rluipa.com/index.php/article/398.html.
2 – RILUPA defines a “land use regulation” as a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” 42 U.S.C. § 2000cc (2006).
3 – See e.g., Audie Cornish, Bible Theme Park Faces Opposition in Tennessee, May 15, 2008,http://www.npr.org/templates/story/story.php?storyId=90435219 (discussing a proposed 200 million dollar, 280 acre theme park that would focus on historical aspects of the Bible).
4 – Church of Universal Love and Music v. Fayette County, Civil Action No. 06-872, 2008 U.S. Dist. WL 4006690 (W.D. Pa. Aug. 26, 2008).
5 – Id.
6 – Susan Kuczka, Lake Bluff Man Declares His Home a Church, Gets Tax Break, chicagotribune.com, July 16, 2008,http://www.chicagotribune.com/news/nationworld/chi-lake-bluff-church-17-jul17,0,5397208.story.
7 – Thomas v. Review Bd., 450 U.S. 707 (1981) (finding that the right free exercise of religion is infringed when substantial pressure causes someone to violate a belief); Sherbert v. Verner, 374 U.S. 398 (1963) (discusses free exercise in terms of whether an action forces a person choose between following religious and forfeiting benefits, on the one hand, and abandoning one of the precepts on the other hand).
8 – As an example he mentioned Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) (stating that in order to determine whether government action places a substantial burden on a religious institution courts look at whether the action “coerced the religious institution to change its behavior.”).
9 – As an example of the court finding a compelling interest in adhering to a comprehensive plan, Ms. Tappendorf mentioned Vision Church v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006) (upholding size limitations because they were part of a comprehensive plan).
10 – RLUIPA requires that no government “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 10 42 U.S.C. § 2000cc (2006). The full text of the Act can be viewed at http://www.rluipa.com/index.php/article/398.html.